Cancellation of Removal

Cancellation of removal is a form of relief available to non-U.S. citizens who have been placed in removal proceedings, also commonly known as deportation proceedings. It is available to both lawful permanent residents of the U.S. and to those who have never been granted a green card. If a person is granted cancellation of removal, the Immigration Judge is indeed cancelling their removal from the United States and allowing them to lawfully stay in this country. An Immigration Judge is the only person who can grant a person cancellation of removal.

There are different standards that apply to permanent residents applying for cancellation of removal as opposed to applicants who have never been granted their green cards. Please read below for additional information regarding this important form of relief.

Cancellation of Removal for Permanent Residents
A lawful permanent resident, more commonly referred to as a green card holder or an immigrant, may be placed in removal proceedings if they are inadmissible to the U.S. or subject to being removed from the U.S. This may happen because of a person’s criminal convictions. Fortunately, many permanent residents in removal proceedings are eligible for cancellation of removal.

A permanent resident may be granted cancellation of removal if they can show the following:
• They have been a lawful permanent resident for at least 5 years.
• They have continuously resided in the U.S. for at least 7 years after having been admitted in any status.
• They have not been convicted of an aggravated felony.

Please note that there are complicated laws governing the 5 and 7 year periods mentioned above, as well as whether a criminal conviction qualifies as an “aggravated felony.” It is highly recommended that you consult an experienced immigration attorney to discuss these issues.

Cancellation of Removal for Nonpermanent Residents
A person who has never been granted permanent resident status in the U.S. may be placed in removal proceedings due to their lack of valid immigration status in the U.S. As the Department of Homeland Security is actively trying to deport them from the U.S., they must apply for relief from deportation if they want to be allowed to remain in the U.S. This foreign citizen may be eligible for their green card though cancellation of removal for nonpermanent residents if they can show the following:
• They have been continuously physically present in the U.S. for at least 10 years.
• They have been a person of good moral character during such period.
• They have not been convicted of certain criminal offenses that would make them inadmissible to the U.S. or removable from the U.S.
• Their removal would result in an “exceptional and extremely unusual hardship” to their spouse, parent, or child, who is a U.S. citizen or permanent resident of the U.S.

Please note that hardship will be present in all cases where a person is potentially deported. This standard level of hardship is not sufficient to be granted cancellation of removal. Rather, a person must prove that the hardship in their case is “exceptional and extremely unusual” when compared with other people also facing deportation. Thus, children not being familiar with the language or the culture in the foreign country is typically not sufficient. Example of successful cancellation of removal cases include children who have severe medical disabilities that are not properly treated in foreign countries, or children who are exceptionally talented with a bright future in the U.S., etc.

Cancellation of Removal for Battered Spouse or Children
A person may also be granted cancellation of removal as a battered spouse or child. Applicants must prove the following:
• They have been battered or subjected to extreme cruelty by a spouse or parent who is a U.S. citizen or lawful permanent.
• They have been physically present in the U.S. for at least 3 years.
• They have been a person of good moral character during such period.
• They have not been convicted of certain criminal offenses that would make them inadmissible to the U.S. or removable from the U.S.
• Their removal would result in extreme hardship to themselves, their child or their parent.

Stop-Time Rule
For individuals not applying for cancellation of removal as a battered spouse or child, there are specific laws which apply to the calculation of their continuous residence or continuous physical presence in the U.S. The required periods of continuous residence or continuous physical presence in the U.S. are deemed to end when they are served with a Notice to Appear (the formal initiation of removal proceedings) or when they commit certain criminal offenses that would make them inadmissible to the U.S. or removable from the U.S.

Breaks in Presence
For non-permanent residents applying for cancellation of removal, they will be considered to have failed to maintain continuous physical presence in the U.S. if they departed the U.S. for any period in excess of 90 days, or for any periods in the aggregate exceeding 180 days.

Required Evidence
There is an official application that must be filed with the immigration court when applying for cancellation of removal. However, even more important than the application is the supporting documents. The applicant must prove each required element. For physical presence, this may include copies of tax returns, rent receipts, school transcripts, etc. For hardship, this may include doctor’s letters, medical records, a child’s Individualized Education Plan, etc.

An applicant should also submit well-written declarations discussing the elements of their case and why they should be granted this form of relief. These declarations should also be supplemented by in-person testimony in court, which is an applicants’ or a witnesses’ opportunity to make a personal plea to the immigration judge.

Discretion
An Immigration Judge must decide to favorably exercise discretion before a person will be granted cancellation of removal. The immigration judge will want to be convinced that an applicant is honest, sincere, and is a deserving of a grant of cancellation. On the contrary, if an immigration judge believes that a person is not telling the truth, or is not dedicated to assisting their family members in need of help, or has too extensive of a criminal history, an immigration judge may very well deny the application by refusing to favorably exercise their discretion. This may happen even if the applicant has satisfied all other stated requirements.

Work Authorization
Applicants for cancellation of removal are eligible for work authorization. These work permits will be valid for one year, but may be renewed for as long as the application is pending.

Be Aware of Scams
Please be aware that there is a lot of misinformation. Many people are under the mistaken impression that they are automatically eligible for their green cards if they have been in the U.S for 10 years. While “10 years” is certainly a component of cancellation of removal, that fact by itself will not guarantee a person a green card. Please be careful before submitting any application for immigration benefits.

Reeves Miller Zhang & Diza – Full-Service Immigration Law
Thousands of people each year obtain their green cards through cancellation of removal. This may be a viable path to a green card depending on your personal circumstances. Consult the skilled legal team at Reeves Miller Zhang & Diza to learn whether you are a candidate for cancellation of removal. Contact us today for a confidential consultation about your case.